Top NY Times author Amy Gajda speaks in Naples in February

Think you have a constitutionally guaranteed right to privacy? Or that the First Amendment gives anyone the freedom to publish or post anything, based on the public’s right to know?

Of course, both questions are much more complicated than that, and America’s laws and standards have changed over the centuries. Just last year, the “right to privacy” was a cornerstone issue when the Supreme Court’s leaked Dobbs v. Jackson ruling overturning Roe v. Wade.

Tulane Law School professor Amy Gajda tackles these issues in her entertaining and anecdotal book “Seek and Hide: The Tangled History of the Right to Privacy,” which The New York Times named one of the top 100 notable books for 2022.

Gajda is the second speaker, on Monday, Feb. 6, in the 2023 Nonfiction Author Series, sponsored by the nonprofit Friends of the Library of Collier County.

The four-author series, which raises funds for the Collier County Public Library system, is sold out, but the Friends does maintain a waitlist. (See info box for details.)

The right to privacy seems to be simultaneously under siege and surging today — and that’s doubly dangerous, argues Gajda, a former journalist who has written for the New York Times and Slate, and who is considered one of the country’s top experts on privacy and the media.

Too little privacy can mean extraordinary profits and power for the people who publish soul-crushing secrets, Gajda says. Too much privacy means the famous and infamous — from presidents to corporate titans — can cloak themselves in secrecy.

Book talk:Tiger, Phil, war and more: Nonfiction Author Series returns to Naples with 4 sessions in 2023

First speaker in series:'Bone Collector' writer part of Bonita Springs author series that begins in January

Here’s a sneak peek at Gajda’s upcoming talk in Naples.

Naples Daily News: What’s your reaction to the Supreme Court’s Dobbs v. Jackson decision that overturned Roe v. Wade’s abortion rights? Justice Clarence Thomas wrote that the court should revisit other decisions, such as those on contraception (Griswold v. Connecticut) and same-sex marriage, that were based on a right to privacy.

Amy Gajda: The decision is troubling for a lot of reasons, including what it means for the Supreme Court’s Roe v. Wade line of cases that started with Griswold’s recognition of a constitutional “right of privacy.” The language in the Dobbs decision that restricts fundamental constitutional rights to those that are enumerated or deeply rooted in the nation’s history certainly could be used to attack a host of other fundamental rights we now take for granted. I do not believe, however, that Dobbs will spell the end of legal protection for privacy. For one thing, the majority went to some pains to emphasize that abortion is unique and to disclaim any intent to unsettle other established rights. For another, some of the privacy-rich stories I detail in my book help demonstrate that respect for some notions of privacy were very much deeply rooted in our nation’s history. The Founders suggested, for example, that “instances of male conduct” would be protected on privacy grounds despite First Amendment freedoms, which might suggest deep constitutional protection for sexual activity. Finally, the Dobbs decision also differentiates privacy interests in personal decisions (such as abortion) from interests in shielding private information from public disclosure, so even Dobbs suggests that not all privacy is dead in a constitutional sense — and my hope is that that too could be helpful in preserving and rebuilding privacy protection in a future court.

NDN: It was very timely to read in your book, about the 1890s Supreme Court, that “there’d been a series of shocking leaks to the media … newspapers in several key cases had reported days in advance of the official hand down precisely what the outcome would be. All it took, reporters explained, was a little liquor to loosen justices’ lips.” So the revelations/allegations about the current court are nothing new, are they?

AG: Leaks have certainly happened before. There was one justice in particular in the 1800s who leaked like a sieve and, given that, newspapers reported the outcome of a number of important cases well before they were handed down. But the wholesale release of a draft opinion is something new. In more modern times, Supreme Court employees (my husband was a clerk to a justice, which is why I know this with certainty) are warned about the importance of secrecy at the Court. Chief Justice Rehnquist put the fear of God in those who worked at the Court in his time. I’m not sure that we’ll ever find out who leaked the Dobbs opinion to media, but theories about who and why someone violated that secrecy covenant abound!

NDN: Dignity is used often to define the right to privacy, but who gets to define exactly what “dignity” is? Also, so much of this legal defining occurs after the fact, when an individual’s privacy already has been exposed on the internet or on TV and can’t ever be put back in the box.

AG: Intriguingly, the word “dignity” isn’t used all that often in privacy decisions in the United States. It’s certainly been used before; one California case springing from the videotape of an auto crash victim’s agony mentioned dignity in upholding the victim’s right to privacy. It’s possible that the word has been used less often because some scholars worry that an eager judge could use “dignity” to restrict First Amendment freedoms. I’m less worried about that: Law routinely asks that factfinders decide cases involving reasonableness and offensiveness and outrageousness, and those words aren’t capable of precise definition either. I think that a focus on an individual’s dignity in an era of revenge porn and other publications that can’t be put back in the box, as you suggest, is a fine thing.

NDN: What about the issue of whether people can record police use of force? Without that, we wouldn’t have the evidence that helped expose the George Floyd killing. But law enforcement counts on our confusion about that right to make us afraid to record them.

AG: The federal appellate courts that have decided the matter have consistently held that that sort of recording is absolutely fine. But recording police misconduct is completely different from surreptitiously using a video doorbell to capture a neighbor’s private conversation in the night and thereafter posting it. It’s the latter sort of fact pattern that has led modern courts to suggest that individuals have privacy even in public: to find that a pedophile can’t take and post images of images of children at a public pool, for example, or to hold that a person has a right to privacy in a lunch conversation even in a public restaurant. As technology has advanced, so have legal efforts to ratchet up protection for privacy — and, as “Seek and Hide” suggests, it’s always been that way.

NDN: A lot of the notion of privacy of home and family is predicated on religious beliefs that the husband/father rules absolutely at home and shouldn’t be questioned. Is this thinking part of what keeps the law and the courts from taking domestic violence as seriously as they should — by accepting that beating your wife or children is a private matter?

AG: For decades, notions of family privacy were used to shield husbands from legal accountability for violence within the home. In recent times, the tide has shifted clearly against that idea. As a lawyer, I’ve found that most judges now take domestic violence seriously and recognize that a man has no more “privacy” interest in beating his wife or children than he would in robbing a bank.

Nonfiction Author Series

What: Author lectures and breakfast that raise funds for the Collier County Public Library system

Where: Kensington Country Club, 2700 Pine Ridge Road, Naples

When: Breakfast (a hot and cold buffet) is served at 8:30 a.m.; the authors speak at 9:15 a.m., followed by a book signing

The next 3 authors: Amy Gajda, “Seek and Hide: The Tangled History of the Right to Privacy,” Monday, Feb. 6; Bob Harig, “Tiger & Phil: Golf’s Most Fascinating Rivalry,” Monday, Feb. 27; and Amanda M. Fairbanks, “The Lost Boys of Montauk: The True Story of the Wind Blown, Four Men Who Vanished at Sea, and the Survivors They Left Behind,” Monday, March 20

Tickets: The series is currently sold out, but the Friends does maintain a waitlist. To be placed on the waitlist, call Marlene Haywood, the Friends’ Program Director, at 239-262-8135, or email her at mhaywood@collier-friends.org. A series ticket is $285 for members and $325 for nonmembers. No single-event tickets will be sold. Friends memberships begin at $40/year. For more information, go to collier-friends.org.

This article originally appeared on Naples Daily News: Top NY Times author speaks in Naples about privacy, First Amendment